Making Amends for Civilian Casualties in Afghanistan

The issue of civilian casualties in Afghanistan is one I became personally acquainted with on September 18, 2010, Election Day. A 23 year old member of my election monitoring field team, newly married and soon to become a father, was struck by a U.S. military vehicle on a dark provincial road as he made his way home from his assigned polling center. He was airlifted to the hospital at Bagram Air Base for treatment but died from his injuries three days later.

A representative of the NATO-led International Security Assistance Force (ISAF) visited my office the next morning with a detailed report on the incident, including a timeline of the events leading up to my colleague’s death. By then, the young election observer’s body had already been returned to his family and U.S. Army officers had visited his parents and wife to explain in detail what had happened, offer condolences, and make a solatia payment. While understandably grief-stricken, the family accepted this response and said they bore no ill will toward international troops because their loved one’s death had been an accident, not an act of violence.

Had an Afghan soldier been driving the vehicle that hit my colleague that night two and a half years ago, his parents and widow might have received his body and nothing else –no explanation, no acknowledgement of their loss, no monetary assistance of any kind.

[…] redress and accountability for civilian harm caused by the ANSF is rare in practice. The exception may be high profile incidents that rise to the attention of senior ANSF officials keen to promote the professionalism and accountability of the ANSF. Even then, investigations are ad hoc and often inhibited by limited ANSF access in territory controlled by armed groups. The problem of weak internal ANSF accountability is compounded by the lack of an external mechanism by which civilians may file complaints and receive redress.

With Afghanistan’s security transition well underway, and Afghan forces soon to be in control of the entire country, the civilian casualties issue is one that the Afghan government can’t afford to ignore.

To get a better sense of what can and is being done to improve the way the Afghan government responds to cases in which its own security forces harmed civilians, I contacted Michael Shaikh, Director for Country Operations for the Center, and he kindly answered my questions.

UN Dispatch: In the report, you recommend that the United States and other international backers of the Afghan Government fund an Afghan civilian casualty mitigation team for at least five years. Have you received any indication that recommendation will be implemented?

Shaikh: There is certainly some movement in toward implementing an Afghan civilian casualty mitigation team, but it is a matter of degree. The ANSF, in particular the Afghan national army and Ministry of Defense, have certainly showed interest and have taken some of the lessons learned from ISAF’s Civilian Casualty and Mitigation Team and mirrored them in their own structure. It is still at the very nascent stages, but we’re cautiously optimistic that the Afghans will do something similar.

It is, however, a much different process for Afghanistan to set up a CCMT than it was for ISAF, where ISAF’s CCMT it is ingrained in a stand-alone foreign mission. Getting a similar Afghan structure will mean actually embedding this into existing Afghan institutions and ministries, changing processes and linking this up with other sorts of investigations around criminal acts. Looking at inadvertent civilian casualties and responding to them is very different from investigating criminal acts, so naturally it is going to be a bit more complicated.

There is some progress in Afghanistan in setting this up but it is not as far along, from the Center’s point of view, as we’d like it to be. In terms of funding, it is pretty clear that some western countries, including the United States, are very supportive of having an institution like this. I haven’t heard anyone proposing to fund specifics, but it would sure be nice. But there is at least political support, and often translating that into financial support is not that hard. Also an Afghan CCMT won’t cost very much per year – we’re looking at $4.2 billion a year in assistance for the Afghan security forces and this will be a fraction of that cost, anywhere in the realm of $3.5-5 million dollars per year.

UN Dispatch: What forensic capabilities do the Afghan security forces currently possess that could be used to professionally investigate allegations of harm to civilian lives and property, and what is being done to build their ability to carry out investigations?

Shaikh: Both the ANP and the ANA have existing internal investigation processes, but they’re geared mostly towards responding to alleged criminal acts –violations of international law or domestic criminal law. They don’t respond very well, if at all, to inadvertent civilian harm, what is called “collateral” damage. So they don’t have a very good track record of proactively investigating instances where people are ‘legally’ harmed, and that’s what this report is trying to encourage them to do.

UN Dispatch: One of the major barriers to civilians receiving assistance for harm they suffered is severely limited access to government institutions in areas of ongoing violence. Beyond working through informal institutions at the local level, which is already happening to some extent, are there other ways the government could reach out to harmed civilians in high-risk areas?

Shaikh: It’s all about information campaigns. One thing which could help get information to civilians in remote areas, is information sent by SMS, explaining what programs exist, explaining in general terms what they need to do, how to apply for these funds and this assistance, and where to go to receive it. I think that’s one creative, practical way in which a lot of information could get out to a lot of civilians.

We documented some of the problems associated with the existing processes, but that doesn’t mean that these programs don’t work, in fact, there are elements of these programs that work really well, they just need to be improved. One of the issues is that a lot of people don’t know that the programs exist, so just telling people about them and how they work will go a long way.

UN Dispatch: Devolving responsibility for approving monetary payments to harmed civilians from the national government to provincial governments is one recommendation you make with the aim of streamlining what is presently a daunting approval process. Do you think that the potential benefits of a more efficient payment system outweigh the risk of increased corruption?

Shaikh: Devolving the decision-making process to the provincial level will absolutely cut down the time it takes for applicants to get to the application centers and in theory it will cut down on the application process time overall. A family that’s already been burdened by some sort of civilian harm, a death in the family, the loss of a limb, property loss, etc., will hopefully spend less time waiting to receive assistance. I don’t think it actually impacts corruption that much, since there is always a risk of corruption, at the provincial and even central level. But I think the process of devolving it down to the provinces will get hasten the process of getting assistance to those who need it most.

UN Dispatch: The Afghanistan Independent Human Rights Commission sends investigators to collect evidence when it receives allegations that civilians have been harmed. In practice how much cooperation is there between the ANSF, the AIHRC, and the Attorney General’s Office on civilian casualty issues?

Shaikh: It’s incredibly hard to tell, we just don’t know.

UN Dispatch: In the course of your research, did you come across any positive examples that could be used as models for reforming the way the Afghan Government and security forces handle civilian casualty incidents?

Shaikh: Actually, ISAF’s Civilian Casualty and Mitigation Team (CCMT) is one. The structures that ISAF has established for reviewing civilian casualties incidents during their operations, responding to them, conducting investigations, and when necessary, making amends to those they hurt, I think is a model. And they use that analysis and tracking process to build on lessons learned. It hasn’t been perfect and there still needs to be a lot of improvements – civilian casualties still happen – but it has certainly reduced the number of civilian casualties, and more importantly, forced ISAF to look at their operations and how they impact civilians. It’s not perfect, but it’s a positive example that can be mirrored within Afghan government institutions.

A similar CCMT type mechanism can be established within the Afghan government structures, perhaps within the President’s office, at the PICC level, the Presidential Information Coordination Center, which would theoretically and principally coordinate this kind of process with those involved in war fighting and that would primarily be the ANSF but also the ANP and the NDS as well, the intelligence services. That is a positive example of one warring party trying to cut down on its casualties and respond to them in a humane way – and also respond to false allegations of casualties. We have to remember that civilian casualties are highly politicized, a mechanism like this also gives the warring party not only the capability to respond, analyze and recognize civilian casualties and provide some sort of assistance to those they harm, but at the same time it also offers them the capability to refute wrongful allegations of civilian casualties.

The victims assistance programs that Afghanistan has in place, the president’s “Code 99” fund, and the older one, the Ministry of Martyrs, have a long history of helping those in need. The Afghan government has a pretty good track record and was very prescient about setting these things up during the Afghan Soviet War and then establishing a newer one during this phase of the conflict. It’s clear that the Afghans care about their own people, it’s just a matter of making those programs work better.

UN Dispatch: Given the ethical, cultural and strategic importance of making amends for harm done to civilians and civilian property, why hasn’t the creation of an efficient system for responding to these incidents been a bigger priority for the countries providing technical and financial assistance to the Afghan government?

Shaikh: There’s a bit of historical context that needs to be taken into consideration here, which is that this really isn’t done in a lot of conflicts. Making amends for harm done is in some ways a very new concept. It is tied very closely to reparations in war crimes, with the difference here being one of lawful obligation. States don’t have a legal obligation to help those they legally harm on the battlefield, because under international law you can legally harm somebody under certain conditions. So what we are saying is that while you may not have a legal obligation, you have a moral obligation. Helping those you have inadvertently harmed is the right thing to do.

This is all very new to militaries, and though we have seen this idea of making amends grow some roots over the past ten years, it is still not a universal norm. It has become a bit of a norm in Afghanistan, with certain ISAF countries doing it, but it is still a relatively new concept, which is why it’s been somewhat of an afterthought for the Afghan government’s international partners. The Afghan government itself has had similar assistance programs in place since the Afghan civil war to help those that have been harmed in violence, so we just need to be reminding them to do this. It is not perfect, but it’s getting there and it is an idea that is certainly taking roots amongst a variety of different nations’ different militaries. Hopefully one day it will be an international norm.

UN Dispatch: Do you foresee the Afghan government changing the way it responds to civilian harm over the next two years?

Shaikh: I’m optimistic. The Center’s report has certainly provided a practical roadmap for what the Afghan government can do. This is a very prescriptive report, which has offered some very practical solutions that can be reached with very little effort that would have a great impact on people who need this kind of help. And I think, from the conversations we’ve had, that the Afghan government seems open to this. Again, you have to put this in the context of the highly politicized climate in Kabul. It does take some time for reforms to be made and there may not be a wholesale revamping of how these processes work, but I am certain that there will be improvements in current structures. Afghanistan’s international partners seem to understand this as well and so our job is to work with Afghanistan and encourage them to improve their existing mechanisms. And I think the Afghans want to do this as well, we just have to give them a little time to figure out how to do it best.